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ELCPartially AllowedMachakos CMCC No. 975 of 2001 (Appeal)· [2017] KEELC 3346 (KLR)

Peter K. Wambua & 3 others v William Muinde Kilundo [2017] KEELC 3346 (KLR)

High Court of Kenya
31 March 2017
OAOscar A. Angote
2,909 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a first appeal against the judgment of the learned magistrate in Machakos CMCC No. 975 of 2001, in which the Respondent, suing as administrator of the Estate of Kilundo Nzivo, sought eviction of the 1st Appellant from plots 43 and 188 and removal of the 1st Appellant's mother's name from the register of members of Mitaboni/Katani Co. Ltd and as co-owner of the suit properties. The trial magistrate found for the Respondent, holding that the Respondent had proved his case on a balance of probabilities. The Appellants appealed on fourteen grounds, principally that the suit was time barred, that it was an abuse of process in view of Nairobi HCCC No. 889 of 1991, and that the 1st Appellant held valid title. The appeal proceeded by written submissions. The High Court examined the pleadings in the earlier Nairobi suit, filed in 1991 by the Respondent's father against the 1st Appellant seeking injunction and eviction over the same plots, which abated on the father's death in 1994. The court held that the Respondent's subsequent suit raised the same issues and sought the same orders against the same 1st Appellant, and that Order 24 Rule 7(1) of the Civil Procedure Rules barred a fresh suit on an abated cause of action; the Respondent's application to revive the earlier suit had been dismissed. The addition of the company and its officials as defendants did not alter the cause of action. The court accordingly declined to delve into the merits, allowed the appeal, set aside the subordinate court's judgment and decree, and awarded costs of both the appeal and the suit to the 1st Appellant.

Key legal issues

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01

Abuse of court process by filing a fresh suit on a cause of action in an abated suit

Holding

The filing of Machakos CMCC No. 975 of 2001 was an abuse of the court process since the same issues, parties' interests and suit properties had been the subject of Nairobi HCCC No. 889 of 1991, which abated on the death of the original plaintiff

Reasoning

The court compared the two plaints and found the orders sought (eviction of the 1st Appellant) and the issues were identical. Order 24 Rule 7(1) of the Civil Procedure Rules bars a fresh suit on a cause of action in an abated suit; Order 24 Rule 7(2) allows revival, and the Respondent's application to revive had been dismissed. Section 8 of the Civil Procedure Act complements this bar. Adding the company officials as defendants did not alter the substance of the claim.

p. 5
02

Whether the court should delve into the merits once abuse of process is established

Holding

No - having found the suit to be an abuse of process, the court declined to consider the merits, including limitation and fraud

Reasoning

Because the suit was 'contra-statute' and an abuse of process, the judge held it unnecessary to address the substantive grounds raised in the appeal concerning limitation of time, fraud and the validity of the title issued to the 1st Appellant's mother.

p. 6

Legal principles established

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  • Where a suit abates, no fresh suit may be filed on the same cause of action; the proper remedy is to apply to revive the abated suit
  • Adding additional defendants to a subsequent suit does not change the cause of action where the substance of the claim is the same

Court orders

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  1. 1.The Appellant's Appeal is allowed
  2. 2.The Judgment and Decree of the Subordinate Court are set aside
  3. 3.The Respondent to pay the costs of the Appeal to the 1st Appellant
  4. 4.The Respondent to pay the costs of the suit in CMCC No. 975 of 2001 to the 1st Appellant

Authorities

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Legislation

  • Limitation of Actions Act
  • Registered Land ActSections 27, 28 and 143
  • Constitution of KenyaArticle 40
  • Civil Procedure ActSection 8
  • Civil Procedure RulesOrder 24 Rules 7(1) and 7(2)
On appeal from
Principal Magistrate's Court, Machakos
CMCC No. 975 of 2001
Jurisdiction invoked
Appellate jurisdiction over appeals from subordinate courts in civil matters (First Appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter K. Wambua & 3 others v William Muinde Kilundo [2017] KEELC 3346 (KLR)", Case Analysis (2017). Machakos CMCC No. 975 of 2001 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3346/eng@2017-03-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.